CO-ORDINATED CARE & QUESTIONABLE CAPACITY

1. CO-ORDINATED CARE & QUESTIONABLE CAPACITY

2. Introductions Joan Braun - Lawyer and Social Worker Maria Denholme – Social Worker

3. Objectives • To examine issues of care coordination in situations where clients have diminished capacity or mental health challenges, with a focus on abuse, neglect, and self-neglect.. • To present a practice based perspective on what some of the challenges can be in day to day practice, and consider one model from BC • To explore these issues from a practitioners perspective with a particular focus on the intersection of legal and psycho-social services. • To provide tools to help responders be prepared for issues which will increase as society faces the upcoming demographic wave).

4. Outline • Why this is important and some definitions • VANGUARD Project • Re:act a model for assessment and intervention from BC • Journey of Care (three perspectives legal, mental health practitioner, mediator) • Discussion • Questions

5. Introduction • Coordination of elder care is always a complex issue • When abuse or neglect is part of the picture further complexity is introduced, including legal complexities • When the adult’s capacity is in question still further complexities enter the picture. • Providing best practice care in these situations involves bringing all of the caregivers and players into one integrated process and plan.

6. Why is This Important Elder Rights Issue Well meaning or concerned friends or family members (or those who motives are personal gain) may allege incapability and on that basis may push for services or decisions against the older adults wishes. Family members or service providers may also try to prevent the adult from making decisions he or she is entitled make without the legal authority to do so in situations where the adult’s decisions is putting him or her at risk of abuse or harm. This may result in an unnecessary loss of autonomy – especially with society’s ageist beliefs that older adult’s are always forgetful, frail and in need of care. However, this is not always the case. For example: Dementia – there is an assumption among many that older adults are always forgetful. However, dementia is a disease process. Although there is a higher prevalence rate among older adults (especially with greatly increased age) it is not a part of normal aging

7. Vulnerability and Capability People commonly confuse vulnerability and capability. • From a legal perspective, adults have the right to make their own decisions unless incapable. However, this is a very complex area of law with many “grey” issues arising at a practitioner level. • In situations where abuse is occurring or the adult is being neglected or self neglecting how should autonomy and protection of the vulnerable be balanced?

8. Autonomy and Protection How do professionals who provide care to older adults with mental health or cognitive challenges balance autonomy and protection? They have to do with this balancing act within the framework of the law. Laws are different from jurisdiction to jurisdiction. To be able to do this they need an understanding of the legal framework. • Examples from BC CEAS • Louise Holland, Abandonnment or Automomy: How Do Social Workers Know the Difference? (Masters of Social Work Thesis, University of British Columbia Faculty of Social Work, 2011). • Vanguard Project

9. Capability • With regard to medical care capability refers to an adult’s ability to do certain tasks. Medical doctors and assessors use a variety of assessment tools to determine capability. • With regard to “legal rights” capability is a legal term. Assessments can inform a legal determination regarding capability but until there has been a legal determination then he or she has the right to make the decision even if the professionals and family members disagree. • Anyone can lose capacity at any age. This could happen through an accident or through a mental health issue. At a later age there is a higher prevalence of dementia and capacity issues can develop slowly over time.

10. Elder Issues – Capability CAPABILITY – BASIC LEGAL TEST • Degrees of capability • Fluctuate, increase, decrease • Focussed on specific decisions or kinds of decisions • To enter into a will • To marry • To manage finances • To refuse treatment or admission to care facility • To refuse a support and assistance plan if adult is being abused or neglected/ self neglected (B.C.)

11. Elder Issues – Capability & Guardianship CAPABILITY IS A LEGAL DETERMINATION Able to understand and appreciate • the context of the decision (relevant information) • the consequences of the decision Any adult who is capable of making a decision is legally capable of making it even if it is risky or unwise. See, for exampleMcCullen vMcCullen, [2006] 49 R.P.R (4th) 112 (B.C.S.C.).

12. Elder Issues Capacity and Guardianship Substitute Decision Makers. If an adult is legally capable of making a decision he or she has the right to do so. If not a substitute decision maker makes the decision on the incapable older adult’s behalf. - Authority granted by older adult while still capable pursuant to power of attorney or other advanced planning document. - Through a court order.

13. Elder Issues – Capability & Guardianship Autonomy ALTHOUGH THE “LEGAL TEST” IS CLEAR, AT A PRACTICE LEVEL ISSUES CAN BE “GREY”DUE TO CHANGING CAPABILITY HOWEVER, AS A PERSON LOSES CAPABILITY REGARDING A DECISION AUTONOMY OVER THAT DECISION BY NECESSITY DESCREASES Decreasing capability

14. Vulnerability “Vulnerability” is a term that refers to vulnerability to abuse or harm. However, there is debate in the literature on who is vulnerable and why a person is vulnerable. 1) One view: Term has been criticized as being paternalistic and for ascribing characteristics to a certain population. As well, if “vulnerability” is defined broadly (eg. all adults over a certain age are vulnerable) the policy response can be to create laws which allow greater intrusion into the lives of those over a certain age. 2) Another view: Vulnerability as situational factors (example: Provincial Strategy Document): • Current or historical abuse or neglect • Isolation, including both physical and social • Lack of supportive family, friends, and other people • Lack of education • Low income / poverty • Absence or uncertainty of citizenship • Recent immigration • Language barriers • Mental health diagnosis • Illness • Developmental disability • Physical challenges or frailty • Addiction • Other

15. Vulnerability & Capablity - Laws • Different jurisdictions deal with vulnerability differently. For example, some have mandatory reporting of abuse to adult protection authorities. As well, in different jurisdictions there are different laws regarding guardianship. Some laws are more intrusive and others less intrusive. For a summary of different statutory adult protection regimes in Canada see the Provincial Strategy Document, which is a paper created as part of the VANGUARD research project. See BC Abuse and Neglect Prevention Collaborative. The Provincial Strategy Document(Vancouver: BC Abuse and Prevention Collaborative, 2009). • BC has no mandatory reporting and civil laws setting out protective measures only apply if the older adult is unable to seek help and assistance on his own. • The BC model, through the approach taken by Vancouver Coastal Health will be used as a case study of these concepts later in our presentation

16. VANGUARD 2 YEAR RESEARCH PROJECT • Commissioned by groups of organizations, professional bodies and policy makers who deal with older adults who have capability challenges. • The research project, focusing on the legal aspects, examined abuse and neglect on the capability to non capability continuum. Researchers: Charmaine Spencer and the BC Law Institute. • The “Collaborative” remained actively involved and discussed practice based issues on an ongoing basis.

17. VANGUARD OUTCOMES Summary of the law on capability and adult protection in Canada. Recommendations for interagency response, and policy and protocol development going forward. A foundational understanding for building future educational tools and developing intra-agency and cross – agency protocols. A two year multi-disciplinary “consensus building discussion” of effective service delivery. Legal research tools: matrix, charts, legal summaries, etc.

18. VANGUARD TOOLS Given the lack of clarity on this issue tools coming out of the VANGUARD Project can be used as tools to clarify key concepts for those working in the area of mental health Introduction VANGUARD defined the term as: - A social construct - Not an inherent quality or individual flaw - Vulnerability is based on social factors

19. VANGUARD TOOLS More Vulnerable This slide is credited to the VANGUARD Project’s “Provincial Strategy Document”. More Capable

20. VANGUARD TOOLS (CONT’D) MARY’S STORY • 75 years old, rural community • MS, but no cognitive impairments • Long-time domestic abuse and violence – physical, sexual, gas-lighting • Son takes advantage – POA – abuse • Little control, little safety • Highly vulnerable, but capable

21. VANGUARD TOOLS CONTINUED INDIRA’S STORY • 80 years old, urban setting, excellent residential care home • Friends and family – listen to her values, wishes, lifestyle • Comfortable assets, held safely • Low capability, low vulnerability

22. Introduction to Next Section One of the things that is unique about the British Columbia context is that the health authority “wears two hats”. 1) It provides health services to all older adults. 2) It has been designated to respond to reports of abuse but only where the person may not be able to seek help an assistance on his or her own. In that situation, the health authority then puts on an investigative “adult protection” hat.

23. Introduction to New Section (cont) In BC the health authority has been given this role of responding to abuse under statute, Adult Guardianship Act Part 3. S. 44, explains that the mandate applies to: adults who are abused or neglected and who are unable to seek support and assistance because of: (a) physical restraint, (b) a physical handicap that limits their ability to seek help, or (c) an illness, disease, injury or other condition that affects their ability to make decisions about the abuse or neglect. BC laws take a “middle ground approach”. However, this can lead to confusion among health authority workers who are providing healthcare to the entire population, including those with mental health problems that are capable, but have this secondary investigation and intervention role with those who cant seek assistance on their own. Having both roles in one agency is unique, and we are going to discuss the issue of coordinated care in the BC context as it is an interesting illustration of these issues.

24. Vancouver Coastal Health Coordinated Response Flow Sheet for staff caregivers

25. Re:act - Two Pivotal Questions • 1. Is the adult abused, neglected , or self neglecting? • 2. Are they able to seek support and assistance?

26. Role of the Designated Responder • Document at each step • Interview the adult • Assess the urgency of the situation • Coordinate the collection of collateral • Coordinate the assessment of abuse, neglect or self-neglect

27. Role of the Designated Responder (cont’d) • Coordinate the assessment of ability to seek/refuse support and assistance • Determine if the adult has a Representative, Committee, or Power of Attorney • Coordinate the development of a care plan to provide support and assistance

28. SUPPORT AND ASSISTANCE PLAN SECTION 1 – DESIGNATED AGENCY INFORMATION - Who is making the plan and who will be responsible for follow up SECTION 2 – PERSONAL INFORMATION AND CONTACT PEOPLE Demographics, contact information, communication information, living situation SECTION 3 – REASON FOR THE SUPPORT AND ASSISTANCE PLAN details of the abuse/neglect/self-neglect, details about factors affecting ability to make decisions about it SECTION 4 – SIGNIFICANT PEOPLE IN THE ADULT’S LIFE Formal substitute decision makers (full information about each) & support people: family, friends, advocates, service providers SECTION 5 – GETTING TO KNOW THE ADULT The person’s history, Strengths and accomplishments, Interests values and beliefs The adult’s wishes with regard to the situation

29. SUPPORT AND ASSISTANCE PLAN (cont’d) SECTION 6 – SUPPORT AND ASSISTANCE • Who was involved in the development of the plan • Details of each support and assistance offered • Description of service and length of time offered • Reason for offering this service • Consequences to the adult of refusing the service • Person responsible for implementation and follow up for this service SECTION 7 – CONCLUSIONS • Was the adult involved or was the plan as fully explained as possible • Outcome: • accepted by the adult • not accepted but the situation is resolved • not accepted and the adult is believed to be capable of making this decision • not accepted, and they are believed to be incapable of making this decision, and there is abuse, neglect, or self neglect and the case is being forwarded to the Public Guardian and Trustee for an assessment of incapability and to determine if a Court Order for support and assistance should be pursued.

30. Role of the Designated Responder (cont’d) • Advise the most responsible physician of the situation and actions taken • Make reports as necessary to the PGT • Report crimes to police • Keep the identity of the person who made the report confidential • Use the tools in the legislation as a last resort if the S & A is refused

31. Adult Guardianship Legislation - BC • Power to investigate • Access order • Warrant to enter for purpose of interview • Interim restraining order • Support and assistance order • Emergency provisions – including apprehension

32. The Journey through Care – A Lifelong Journey

33. Introduction to Journey Legal Perspective Lawyers are concerned: • About the legal rights of their clients • That relevant legislation (laws) are followed • About representing the legal interests of their client • Lawyers may care deeply about the social and medical needs of the older adult but may be restrained by their professional duties. This perspective frames the way a lawyer looks at care planning and decisions. Likewise the lawyer’s role will affect how the lawyer is involved and what he or she can do. Is the lawyer representing a client, or is the lawyer representing the health authority?

34. Introduction to JourneySocial Work Perspective Autonomy of capable individuals The CASW Code of Ethics: Value # 1: Social work is founded on a long-standing commitment to respect the inherent dignity and individual worth of all persons. When required by law to override a client’s wishes, social workers take care to use the minimum coercion required. Principles: • Social workers uphold each person’s right to self-determination, consistent with that person’s capacity and with the rights of others. • Social workers uphold the right of society to impose limitations on the self-determination of individuals, when such limitations protect individuals from self-harm and from harming others. • Social workers respect the client’s right to make choices based on voluntary, informed consent. • Social workers uphold the right of every person to be free from violence and threat of violence. Value # 3: In professional practice, social workers balance individual needs, and rights and freedoms with collective interests in the service of humanity.

35. Coordinated care – differing levels of support and intervention Intrusion Prevalence

36. Legal and Social Work aspects continue throughout Support services continue throughout

37. Capable Adult • all care planning and intervention is voluntary • Abuse and neglect addressed with the adult • adult can refuse any plans offered Client and family meeting Pension etc. applications Financial and Banking Plans Care Facility Lists Connect to community supports Powers of Attorney, Representation Agreements, Wills, Guardianship for minor children

38. Fluctuating or partial capability • Some protective measures need to be considered…. Investigations of abuse/neglect and of capability • Adult may be able to accept/refuse plans in one area and not in others Informal adaptations Support and Assistance Plans Client, Family and Collateral Meetings Powers of Attorney, Representation Agreements, Mediation, Mental Health Act Certification

39. Incapable Adult • Proper Assessment and legal decision must be considered if there is abuse and neglect • Include as much as possible the adults previously expressed values, beliefs, and choices • Adult is not able to accept or refuse plans put in place Caregiver Support Placement Advocacy Follow up for court orders Committee, Support and Assistance Orders

40. Assessments, Tools, and Guidelines Capacity Assessment requires a coordinated and multi-disciplinary response • Must always include assessment of cognitive and executive function, and then assessment of capacity in a specific area • Multiple sources including self report from the adult, collateral reports, and objective measures • Must include a careful identification of the tasks/issues for which capability is being considered • Must be clearly documented and have standard components in accord with the applicable local laws

41. Tools • Specific tools: 3MS, MMS, PGT Functional and Decision Making Form for PPA, Brief Abuse Screen for Elderly, Elder Abuse Suspicion Index, Caregiver Abuse Screen, Frontal Behavioural Inventory, MOCA • Which tools you choose will depend on what you are specifically assessing and what your professional discipline is. It’s important to have a basic understanding of tools you may not use yourself so that you can consider their findings knowledgeably

42. Guidelines http://www.vchreact.ca/resources.htm • The Vancouver Coastal Health Re:act program web site as many great resources • Capability and Consent Tool (gives various different types of consent situations, along with their various criteria, relevant statutes, and who assesses them) – this is specific to British Columbia but you can develop one for your own area • The VCH Quick Assessment Guide (designed for physicians and anyone else working with elders to consider the issue of abuse, neglect, self neglect) • The Re:act manual for VCH staff to assist them in dealing with adult abuse and neglect

43. Available at www.vchreact.ca Clinical Assessment Tools • VCH Quick Assessment Guide • Brief Abuse Screen for the Elderly (BASE) • Frontal Behavioral Inventory (FBI) • Geriatric Depression Scale • Indicators of Abuse Screen • Lawton and Brody IADL Scale • The Caregiver Abuse Screen (Reis-Nahmiash CASE) • Capability and Consent Tool - BC Edition

44. Journey of Care – Elder Mediation Another Example of Capacity & Abuse; Autonomy & Protection in a Practice Situation. Elder mediation has been noted as a promising approach. Rather than going to court to resolve disputes about capacity, guardianship, care, etc. these issues can be resolved by the family and other care givers with the help of a neutral third party (mediator) However, even though this approach has promises concern has been expressed in the literature, especially around issues of guardianship and vulnerability and specialized training has been recommended for elder mediators.

45. Elder Mediation Experts agree that older adults with capability issues should participate in mediation to the maximum degree possible. Accommodation may be needed such as attendance of a support person, shorter sessions, scheduling mediations at certain times of day, etc. Although the mediator’s role is to assess capability to participate there may be decisions within the mediation that the older adult does not have the capability to decide. This is an area where more research as needed as there is insufficient guidance to mediators on this issue and there are many ethical issues that may arise related to abuse or capacity that the elder mediator should have policies and best practices in place to deal with.

46. Elder Mediation Key Strategies for dealing with abuse/ capacity Pre-mediation meetings See, for example, Joy Anne Braun, Child Protection Mediation: Mediator Strategies for Managing the Process (MSW Thesis, University of British Columbia, 2007 Screening Training and practice standards

47. Considering Your Practice • Ongoing review of your own practice allows you to continually improve your ability to assist people with diminished capacity

48. Considering Your Practice When confronted with adult abuse, neglect, or self neglect: • I have a clear understanding of what the care need/service request is • I have assessed whether there is an issue of abuse, neglect, or self neglect involved • I have solicited and considered the wishes of the adult (whether capable or not) • I have received a comprehensive assessment of the adult’s cognitive, executive, and functional capabilities in instances where capacity is questioned, including the rationale for recommendations of (in)capacity • I have solicited and considered the wishes of the adult’s informal and natural supports (both their ability and their wishes) to the extent that I am allowed by law/indicated by the situation • My plan involves the least intrusive, most effective interventions appropriate and available to the situation • I have a clear written plan of care, including who will be responsible for each area and what will happen if the plan is not implemented in that area • I have a specific timeline for the review and revision of the plan. • If I am considering a formal legal intervention I am considering the least intrusive option that will meet the needs of the adult and have facilitated provision of legal counsel to the adult.

49. Contact Information Maria Denholme Social Worker/Designated Responder maria.denholme@vch.ca 604-983-6020

50. Contact Information http://wwwelmsbc.ca braun@joanbraun.ca 604-780-4870